Jharkhand High Court
Sardar Gurbir Singh vs The State Of Jharkhand Through ... on 25 February, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 11 of 2019
Sardar Gurbir Singh .... Petitioner(s).
Versus
The State of Jharkhand through Vigilance ... Opp. Party(s).
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH: VIDEO CONFERENCING
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For the Petitioner(s) : Mr. Jitendra S. Singh, Advocate.
For the Vigilance : Ms. Nikki Sinha, Advocate.
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09/25.02.2022: Heard the learned counsel for the parties.
2. In this petition, the petitioner has challenged the order dated 10.12.2018 passed by the Special Judge, ACB, Ranchi in Misc. Cr. Application No. 1041 of 2018, arising out of Vigilance Case No. 25/2009, corresponding to Vigilance P.S. Case No. 20/2009, whereby, the discharge petition filed under Section 239 Cr.P.C was dismissed holding that there are materials to proceed against the petitioner.
3. The petitioner happens to be a builder, who alleged to have constructed a building, deviating the building plan. It is alleged that initially building plan was submitted but thereafter by paying necessary fees, the building plan was said to be revised. It is alleged that the said revision was obtained illegally and thereafter the construction was made in violation of provisions of the building bye laws as well as building plan. It is also alleged that this was done in connivance with the government officials by bribing them.
4. Learned counsel for the petitioner argues the case on merits but this Court is restraining from giving any observation on merits of the case, as it may not prejudice the trial court.
5. This Court intends to set aside the impugned order only on the ground that the same is non-speaking, though the trial court has held that there are materials to attract the offence under Sections 420/109 of the Indian Penal Code and Section 12 of the Prevention of Corruption Act, 1988.
6. I find from the order impugned that what is the factual foundation which attracts the aforesaid penal sections, have not been dealt with by the Trial Court. Section 12 of the P.C. Act provides for punishment of abetment of offences under the Prevention of Corruption Act. It provides that whoever abets any offence punishable under the Act shall be punished with imprisonment. This clearly means that an offence under the provisions of Prevention of Corruption Act, must have been committed by some person. In the impugned order, there is nothing to suggest as to what are the factual backgrounds to attract any offence punishable under the provision of Prevention of Corruption Act.
-2-7. Further Section 420 IPC is the punishment for cheating. Section 415 IPC defines cheating, which is punishable under Section 420 IPC, which is quoted below:-
"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'".
There is nothing in the impugned order from where this Court can gather that offence under Section 415 is made out against the petitioner.
8. To frame charge under a particular section, there has to be factual background, which attracts the penal provisions. Further, when the discharge petition is filed, it is incumbent upon the court to at least refer as to what are the facts, which attract the penal provisions and whether the ingredients of those Sections are fulfilled or not, for framing charger against an accused. The overtact of the accused which attracts the penal provision should be reflected in the order. It is true that the defence version will not be accepted at this stage, but at least the prosecution version against the accused should be clear enough to attract the particular offence. The ingredients of those offences should be gathered from the materials collected during investigation. Merely, mentioning the penal section will not suffice. It has to be seen whether the factual materials collected against the particular accused attracts those penal provisions or not, and whether the facts fulfills the ingredients of those penal Sections or not. This has to be reflected in the order, which is passed by the court while dealing with the discharge petition. All these ingredients are missing in the impugned order. Thus, the impugned order is set aside.
9. The Trial court is directed to re-hear the petitioner and the State and pass a fresh order on the discharge petition considering the factual foundation vis-a-vis the penal sections, if any attracted.
10. Accordingly, this petition stands allowed with the aforesaid observation and direction.
Anu/-C.P.-3 (ANANDA SEN, J.)